eWeek on State Super DMCAs

> http://www.eweek.com/article2/0,3959,1033071,00.asp


New Law Putting Net—and You—at Risk

By  Jim Rapoza 
April 17, 2003


As of this moment, the security level of the Internet has taken a big hit.
And it's not because of a new worm or some nefarious hacker collective; it's
because of a set of badly conceived laws that have been passed by several
states. 

These measures, referred to as Super DMCA laws (see Freedom-to-Tinker's
Super DMCA page) are badly designed laws promoted by the Motion Picture
Association of America. Super DMCA legislation has already been passed in
Colorado, Delaware, Illinois, Michigan, Oregon, Pennsylvania and Wyoming. 

Now Super DMCA has claimed one of its first victims, the award-winning
open-source application LaBrea, which is designed to stop the spread of
worms such as Nimda across the Internet. Tom Liston, the developer of
LaBrea, has stopped distribution of the program for fear of prosecution
under the Illinois version of this law. 

Why would a program that stops harmful worms from spreading run afoul of a
law that is on the surface intended to stop cable theft? Because, like the
less-damaging federal DMCA law, Super DMCA is overly broad and lacks common
sense (see Peter Coffee's column on these laws). 

One of the common aspects of these laws is that they make illegal any device
or program that can "conceal or to assist another to conceal from any
communication service provider or from any lawful authority the existence or
place of origin or destination of any communication." Aside from LaBrea,
this makes a whole set of common IT programs and hardware illegal, from
firewalls to VPNs to privacy applications. 

So if you live in one of these states, you are now breaking the law if you
run a firewall. And if you're an IT admin that has all of your internal
systems running on NAT, you could face as much as five years in prison and
up to a quarter-million-dollar fine. 

Tom Liston's LaBrea, which I named the most useful application of 2001 and
which was also a finalist in eWEEK and PC Magazine's 2002 I3 Awards, clearly
violates the letter if not the spirit of these laws. 

Some would say that Liston probably wouldn't face any legal action, but
under the federal DMCA, several companies and individuals have faced legal
consequences for actions that had nothing to do with the original intent of
the law. Russian programmer Dmitry Sklyarov was even jailed for a time under
the DMCA. 

Liston outlined several of these concerns to me in an e-mail exchange. He
wrote: "The real issue here is that the law is just so utterly vague that
you can't be sure of anything. Everyone has been telling me that I need to
get a lawyer's opinion on this, but somehow hiring a lawyer to tell me
whether or not I can legally give away what I know is perfectly legitimate
software just strikes me as wrong. Just plain wrong." 

Liston also told me that he had been working on a next-generation "LaBrea on
steroids," but this is now in limbo until the Illinois law gets straightened
out. 

So now, possibly millions of people in these states are breaking the letter
of these laws—with fines and jail time possible, if unlikely, penalties. And
because of these laws, a highly effective program that stops the spread of
worms is no longer available. 

So if the spread of a worm ravages your company, you might want to thank the
legislatures of Colorado, Delaware, Illinois, Michigan, Oregon, Pennsylvania
and Wyoming for making it more likely. 

If you live in one of these states, or in a state that is considering one of
these Super DMCA laws, you should contact your representatives immediately.
And you might want to remind them that if they have any kind of normal IT
setup, they are probably also breaking these laws. 

For more information on the Super DMCA laws and to see where your state
stands, go to the Electronic Frontier Foundation's Super DMCA page. 

East Coast Technical Director Jim Rapoza can be reached at
[email protected].


-- 

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